DPP v Cunniffe

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 10 February 2003
• Neutral Citation: [2003] IEHC 144
• Court: High Court
• Docket Number: [No. 2130 S.S./2002]
• Date: 10 February 2003

[2003] IEHC 144

THE HIGH COURT

[No. 2130 S.S./2002]

DPP v. CUNNIFFE

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND

GERARD CUNNIFFE

Accused

Citations:

ROAD TRAFFIC ACT 1961 S49(23)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

DPP V KEMMY 1980 IR 160

DPP V CORMACK 1999 1 ILRM 398

CONROY V AG 1965 IR 411

DCR 1997 O.38 r1(1)

DPP V WINSTON UNREP O'HANLON 25.5.1992 1992/6/1935

DCR 1948 O.88

DCR 1997 O.38

DUGGAN, STATE V EVANS 1978 112 ILTR 61

DPP V CORBETT 1992 ILRM 674

ROAD TRAFFIC ACT 1961 S49(2)(3)

DPP V COLFER UNREP O'DONOVAN 9.2.1998 2000/20/7852

Synopsis:

CRIMINAL LAW

Road traffic offences

Drink driving - Consultative case stated - Whether statement of accused sufficient proof of accused's driving - Road Traffic Act, 1961 - Road Traffic Act, 1994 (2002/2130SS - O Caoimh J - 10/02/2003)

DPP v Cunniffe

This was a consultative case stated by a judge of the District Court. The accused was charged with drink driving. The Gardai had arrived at the scene of an accident and the accused was found in a nearby house. The District Court sought the opinion of the High Court as to whether a statement made by the accused to a Garda and related in evidence was sufficient proof of the accused’s driving for the purposes of establishing the commission of the offence alleged.

Held by Ó Caoimh J. in answering the case stated in the positive that the evidence of the Garda was such as to support the accusation against the accused of contravening the Road Traffic Acts.

Mr. Justice Aindrias Ó Caoimh

1 This is a consultative case stated by Judge Mary Fahy, a judge of the District Court sitting at Castlerea, County Roscommon.

The case stated recites is as follows:-

2 1. At sittings of the District Court at Ballaghaderreen on the 24^th January, 2002 and 28^th February, 2002 and at sittings of the District Court at Castlerea on the 15^thMarch, 2002 and the 19^th April, 2002 the said Gerard Cunniffe appeared before me to answer the accusation of the Director of Public Prosecutions in the summon served on the said Gerard Cunniffe in respect of the following Offence:-

3 That the said Gerard Cunniffe did on the 2^nd July, 2001 at Kilcolman, Ballaghaderreen in the Country of Roscommon drive a mechanically propelled vehicle registration number 90 RN 2134 while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his blood exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of blood. Contrary to s. 49( 23) and 6(a) of the Road Traffic Act 1961as inserted by s.10 of the Road Traffic Act1994.

4 2. At Ballaghaderreen District Court on the 24^th January, 2002 at the commencement of The Director of Public Prosecutions v. Gerard Cunniffe, Mr. Declan O'Callaghan, Solicitor indicated that he appeared for Mr. Cunniffe and that he had a preliminary point to make in relation to the service of the summons in the case. I then heard submission in relation to the summons and the matter was adjourned to Ballaghaderreen District Court on the 28^th February, 2002. On that date I heard further submission in relation to the service of the summons and the case was adjourned to Castlerea District Court on the 15^th March, 2002.

5 3. At Castlerea District Court on the 15^th March, 2002 I ruled that the manner in which summons was served was in order and I directed that the case proceed.

6 4. Superintendent Paul Hargadon on behalf of the Director of Public Prosecutions called Garda J.B. Colleran. Garda Colleran indicated that he was a member of An Garda Siochána stationed at Ballaghaderreen and that at 12.07 a.m. on the 2^nd July, 2001 he arrived at the scene of a material damage traffic accident at Kilcolman, Ballaghaderreen where motor vehicle 90 RN 2134 crashed into two parked motor vehicles 94 D 28956 and 92 CE 3586. On his arrival motor van 90 RN 2134 was parked partially on the footpath with its headlights on and engine running. Garda Colleran said in evidence that he found Mr. Cunniffe in a nearby house and took him outside to the scene of the accident. Garda Colleran said Gerard Cunniffe admitted he was driving motor van 90 RN 2134 a few minutes earlier when the accident happened.

7 5. Garda Colleran then gave evidence of forming the opinion that Mr. Cunniffe had committed an offence under s.49(1), ( 2) or (3) of the Road Traffic Act1961as amended by the Road Traffic Act1994.He gave evidence of arresting Gerard Cunniffe at 12.20 a.m. on the 2^nd July, 2001 where upon he was taken to Ballaghaderreen Garda Station arriving at 12.25 a.m. Garda Colleran gave evidence that Gerard Cunniffe provided a sample blood to the designated Dr. at 12.35 a.m. which was subsequently tested and Garda Colleran produced a Certificate of Analysis to the Court.

8 6. At the conclusion of Garda Colleran's evidence Superintendent Hargadon again went over with him the circumstance in which Mr. Cunniffe was detected. Garda Colleran repeated that he arrived at the scene of the accident at 12.07 a.m. on the 2^nd July, 2001. Garda Colleran repeated that Mr. Cunniffe was not there but at a nearby house. Garda Colleran said, in this part of his evidence, that Mr. Cunniffe admitted driving "a few minutes earlier".

9 7. Mr. Declan O'Callaghan then cross-examined Garda Colleran who confirmed that he did not witness the accident. Garda Colleran confirmed also, that he did not ask Mr. Cunniffe or anybody else the precise time of the accident.

10 8. At the conclusion of the prosecution's case Mr. O'Callaghan applied for a direction on the grounds that there was no evidence before the Court that Gerard Cunniffe was driving on the 2^nd July 2001 as set out in the summons. Mr. O'Callaghan quoted the following extract from the decision of O'Higgins C.J. in the case of D.P.P. v. Kemmy 1980 IR 160 at p.164:-

11 "Where a statute provides for a particular form of proof or evidence in compliance with certain statutory provisions, in my view it is essential that the precise statutory provisions be complied with. The Courts cannot accept something other than that which is laid down by the Statute, or overlook the absence of what the statute requires. To do so would be to trespass into the legislative field. This applies to all statutory requirements; but it applies with greater general understanding to penal statutes which create particular offences and then provide a particular method for their proof. The Act of 1978 [now 1994] is a penal statute".

12 Mr. O'Callaghan submitted that it was necessary for the prosecution to prove the essential ingredients of the offence and that it was not open to he Court to infer any of the essential ingredients of the offence and in particular Mr. O'Callaghan submitted that it was not open to the Court to infer that Mr. Cunniffe was driving on the 2^nd July, 2001 merely because he admitted driving a few minutes earlier when questioned y Garda Colleran sometime after 12.07 a.m. on the 2^nd July, 2001.

13 9. I then referred Mr. O'Callaghan to a decision of The Supreme Court per O'Flaherty J. namely the decision inDirector of Public Prosecutions v. Cormack (Unreported, Supreme Court, 22^ndJanuary, 1999), and the case was adjourned to Castlerea District Court on the 19^th April, 2002 for further submissions on the point.

14 10. Inspector Kearney who represented the D.P.P. at this court on the 19^th April, 2002, responded by saying that he believed that the matter was adequately covered in the decision of D.P.P. v. Cormack. The Inspector submitted that Garda Colleran in his direct evidence said that he spoke to the driver at 12.07 a.m. on the 2^nd July who admitted "driving his van a few minutes earlier". The matter for the court to decide here, was the definition of "a few minutes", in light of the statutory requirement of the provision of the blood sample within three hours of driving—in this case the sample was provided at 12.35 a.m. The Inspector submitted to the court that the Judge should take judicial notice of the interpretation of "a few minutes". Mr. Cunniffe could not be prejudiced or misled on the date or time of driving as he had not adduced any evidence or witnesses to contest this.

15 11. Mr. O'Callaghan renewed his application for a direction on the basis that there was no evidence of driving by Gerard Cunniffe on the 2^nd July, 2002 and the onus of proof of this rested with the prosecution. He submitted that the present case was different from the case of D.P.P. -v- Cormack for the following reasons:-

16 (i) InD.P.P. v. Cormack, Mr. Cormack made an admission that he had been driving the motor vehicle involved in the accident "ten minutes" prior to the arrival of the Gardai. The admission referred to a specific period of time from which it was possible to infer when the driving had taken place. In the present case there was reference to "a few minutes earlier" but this was non specific and therefore it was not possible to infer when the driving had taken place.

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